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Abstract

Reviewing the intersection of a religious organization’s right to select employees based on their goals and mission and modern employment law, this article argues that the analysis of the ministerial exception will depend on the type of suit brought. Specifically, the Article identifies five analytical categories: (1) employment discrimination/employment retaliation claims; (2) breach of employment contract claims; (3) whistleblower claims; (4) tort claims; and (5) miscellaneous claims.

The Article begins by describing the ministerial exception and ecclesiastical abstention doctrines that exist under the First Amendment through the lens of the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission. The Article then discusses case law development of ministerial/employment law conflicts pre and post Hosanna-Tabor. Next, the Article reviews five categorical approaches to resolving minister employment law suits. The Article concludes that judicial interpretations of the First Amendment in minister employment suits should provide as much room as possible for religious organizations to select their leaders free from governmental interference.